Olliver v King
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1856 |
| Date | 26 February 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 331
BEFORE THE LORDS JUSTICES.
S. C. 25 L. J. Ch. 427; 2 Jur. (N. S.), 312; 4 W. R. 382.
[110] olliver . king. Before the Lords Justices. Feb. 14, 15, 26, 1856. [S. C. 25 L. J. Ch. 427 ; 2 Jur. (N. S.), 312; 4 W. E. 382.]! A father executed a voluntary deed, assigning a considerable portion of his property to his sons, with the concurrence and by the advice of his brother, to whom he was largely indebted. He also made his will appointing his sons and his brother executors and trustees. The brother acted under the will until his death, which took place seven years after that of the testator. He never took any step to impeach the voluntary deed, but was a party with the donees under it to instruments and transactions proceeding on the assumption of its validity. Held, that after his decease his representatives could not impeach the deed, as being void against creditors under the 13 Eliz. c. 5. A Plaintiff, in a creditors' suit, held not entitled to set up at the hearing a vendor's lien in respect of his debt, without having adapted the frame of his bill to such a case. This was an appeal from a decision of Vice-Chancellor Wood, holding a voluntary deed executed by the testator in the cause to be void against his creditors. The suit was instituted by the executors of the testator's brother on behalf of themselves and all other creditors of the testator. The bill sought the usual accounts, and that a deed of gift made by the testator of some leasehold and other personal property to his sons might be declared void as against the creditors of the testator, and that the property comprised in it might be applied in payment of the testator's debts. James King, the testator in the cause, was a brewer at Southampton, and had in the year 1839, became sole owner of his brewery by purchasing the share from his brother John King, who was the Plaintiff's testator. It was to secure the purchase-money for this share that, on the 6th of April 1839, the testator in the cause had given the Plaintiffs testator a bond for 11,000, of which 1000 had been paid off, and of which the remainder constituted the debt on which the bill was founded. The property of which the share was thus purchased was part freehold and part leasehold. Having purchased [111] and become possessed of the entire brewery, James King on the 6th April 1839, took his son John Richard King (one of the Defendants) into partnership, giving him one quarter of the profits of the business, but not conveying to him any portion of the freehold and leasehold property belonging to the brewery. Upon the same 6th of April 1839, John King made his will, thereby devising both the freehold and leasehold parts of the brewery and the plant and all the property belonging to it to his two sons, John Richard and Morris King. He devised other parts of his freehold and leasehold estates (which were considerable) to his wife for her life, with remainder to his four daughters. After making his will, he continued to carry on the business in partnership with his son John Richard King. In the end of the year 1841, he was attacked by a 332 OLLIVER V. KING 8 DE 0. M. & 0.112. serious illness. It appeared that he had at all times great confidence in the judgment of his brother John King, and that early in April 1842, he consulted John King upon the subject of his affairs-the result of that consultation was, that on the 6th of April 1842, he executed the deed in question, which was dated the 6th of April 1842, whereby he assigned to his two sous John Richard King and Morris King the whole of his leasehold property which belonged to the brewery, arid all his other leasehold estates and also the debts which were due to the brewery. By a codicil he altered in some respects the disposition of the property, which he devised in favour of his wife and daughters, directing a sale and creating a trust of the proceeds for them, and he appointed his brother John King and his two sons executors and trustees. He died on the 17th of April 1842. Soon after his [112] death a portion of the freehold estate which had been given to the wife for life with remainder to the daughters, and which by the codicil had been made subject to the trust for sale, were sold together with a piece of land (about three acres), part of the leasehold property which had been comprised in the voluntary deed of the 6th of April 1842. A portion of the estate devised in trust...
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